Cartels GLOBAL PRACTICE GUIDES - Austria Astrid Ablasser-Neuhuber, Florian Neumayr and Gerhard Fussenegger
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GLOBAL PRACTICE GUIDES Definitive global law guides offering comparative analysis from top-ranked lawyers Cartels Austria Astrid Ablasser-Neuhuber, Florian Neumayr and Gerhard Fussenegger practiceguides.chambers.com 2021
AUSTRIA
Law and Practice
Contributed by:
Astrid Ablasser-Neuhuber, Florian Neumayr
and Gerhard Fussenegger
bpv Huegel see p.20
CONTENTS
1. Basic Legal Framework p.4 2.16 Procedure for Defence Counsel to Raise
1. 1 Statutory Bases for Challenging Cartel Arguments against Enforcement p.12
Behaviour/Effects p.4 2.17 Leniency, Immunity and/or Amnesty Regime p.12
1.2 Public Enforcement Agencies and Scope of
3. Procedural Framework for Cartel
Liabilities, Penalties and Awards p.4
Enforcement – When Enforcement Activity
1.3 Private Challenges of Cartel Behaviour/Effects p.5 Proceeds p.13
1.4 Definition of “Cartel Conduct” p.5 3.1 Obtaining Information Directly from Employees p.13
1.5 Limitation Periods p.6 3.2 Obtaining Documentary Information from
1.6 Extent of Jurisdiction p.6 Target Company p.13
1.7 Principles of Comity p.6 3.3 Obtaining Information from Entities Located
1.8 COVID-19 p.7 Outside this Jurisdiction p.13
3.4 Inter-Agency Co-operation/Co-ordination p.13
2. Procedural Framework for Cartel
3.5 Co-operation with Foreign Enforcement
Enforcement – Initial Steps p.7
Agencies p.13
2.1 Initial Investigatory Steps p.7
3.6 Procedure for Issuing Complaints/Indictments
2.2 Dawn Raids p.7 in Criminal Cases p.13
2.3 Restrictions on Dawn Raids p.8 3.7 Procedure for Issuing Complaints/Indictments
2.4 Spoliation of Information p.9 in Civil Cases p.13
2.5 Procedure of Dawn Raids p.9 3.8 Enforcement against Multiple Parties p.13
2.6 Role of Counsel p.9 3.9 Burden of Proof p.13
2.7 Requirement to Obtain Separate Counsel p.9 3.10 Finders of Fact p.14
2.8 Initial Steps Taken by Defence Counsel p.9 3.11 Use of Evidence Obtained from One
2.9 Enforcement Agency’s Procedure for Proceeding in Other Proceedings p.14
Obtaining Evidence/Testimony p.10 3.12 Rules of Evidence p.14
2.10 Procedure for Obtaining Other Types of 3.13 Role of Experts p.14
Information p.10 3.14 Recognition of Privileges p.14
2.11 Obligation to Produce Documents/Evidence 3.15 Possibility for Multiple Proceedings Involving
Located in Other Jurisdictions p.10 the Same Facts p.14
2.12 Attorney-Client Privilege p.10
4. Sanctions and Remedies in Government
2.13 Other Relevant Privileges p.10
Cartel Enforcement p.14
2.14 Non-cooperation with Enforcement Agencies p.11
4.1 Imposition of Sanctions p.14
2.15 Protection of Confidential/Proprietary
4.2 Procedure for Plea Bargaining or Settlement p.15
Information p.11
4.3 Collateral Effects of Establishing Liability/
Responsibility p.15
2
AUSTRIA CONTENTS
4.4 Sanctions and Penalties Available in Criminal
Proceedings p.15
4.5 Sanctions and Penalties Available in Civil
Proceedings p.16
4.6 Relevance of “Effective Compliance
Programmes” p.16
4.7 Mandatory Consumer Redress p.17
4.8 Available Forms of Judicial Review or Appeal p.17
5. Private Civil Litigation Involving Alleged
Cartels p.17
5.1 Private Right of Action p.17
5.2 Collective Action p.18
5.3 Indirect Purchasers and “Passing-on”
Defences p.18
5.4 Admissibility of Evidence Obtained from
Governmental Investigations/Proceedings p.18
5.5 Frequency of Completion of Litigation p.18
5.6 Compensation of Legal Representatives p.19
5.7 Obligation of Unsuccessful Claimants to Pay
Costs/Fees p.19
5.8 Available Forms of Judicial Review of Appeal
of Decisions Involving Private Civil Litigation p.19
6. Supplementary Information p.19
6.1 Other Pertinent Information p.19
6.2 Guides Published by Governmental Authorities p.19
3Law and Practice AUSTRIA
Contributed by: Astrid Ablasser-Neuhuber, Florian Neumayr and Gerhard Fussenegger, bpv Huegel
1. BASIC LEGAL The Viennese Court of Appeals, sitting as the
FRAMEWORK Cartel Court, hears all competition proceedings
pursuant to the Cartel Act 2005, and has the
1. 1 Statutory Bases for Challenging sole right to issue binding decisions. Appeals
Cartel Behaviour/Effects from the Cartel Court are heard by the Supreme
The Cartel Act of 2005 sets out the prohibitions Court, sitting as the Cartel Court of Appeals.
against cartels and other horizontal or vertical
restrictions (among other competition violations), The FCA has limited power to issue decisions.
including provisions regarding the enforcement However, since a 2013 amendment to the Aus-
of private damages actions. The Cartel Act also trian Competition Act, the FCA can impose fines
sets out the power and procedures of the Austri- if its information requests are not followed by the
an Federal Antitrust Prosecutor (FAP), one of the receiving party. The party can appeal such a fine
so-called official parties responsible for enforc- before the Administrative Court of Vienna in the
ing competition laws in Austria. The Competi- first instance, and before the Supreme Admin-
tion Act sets out the powers and procedures of istrative Court or the Constitutional Court in the
the other official party, the Federal Competition second instance.
Authority (FCA), which is the Austrian national
competition authority. The Competition Act also Outcomes of Cartel Law Infringements
governs the Commission on Competition, which A cartel law infringement may lead to a cease-
is an advisory body to the FCA. and-desist order (including an order requiring a
change to the corporate structure of the under-
The Neighbourhood Supply Act sets out some taking, such as the breaking up of the compa-
additional competition rules, including non-dis- ny), the rendering of an agreement or contract
crimination provisions. Although that legislation as null or void, and an administrative fine of up
primarily governs the relationship between sup- to 10% of the defendant group’s turnover in the
pliers and retailers, the Austrian Supreme Court year prior to the verdict (Section 29 of the Cartel
has held that it also applies to relationships Act 2005). Section 30 of the Cartel Act provides
between any commercial entities that are not guidance on the calculation of administrative
end customers (Austrian Supreme Court case fines. In 2015, in a primarily vertical case that
16 Ok 3/08 Sägerundholz). also had horizontal (ie, hub and spoke) elements,
a large food retailer was fined EUR30 million for
1.2 Public Enforcement Agencies and co-ordinating final selling prices in 2015, the
Scope of Liabilities, Penalties and highest fine imposed on a single undertaking in
Awards Austria.
The FCA investigates violations of the competi-
tion laws and prosecutes them before the Cartel Under the current competition law regime in
Court. Although the FCA is part of the Federal Austria, cartels do not trigger criminal sanctions,
Ministry of Digital and Economic Affairs (BMDW), but cartel behaviour may qualify as bid rigging
it is not bound by any government instructions. or fraud (or both), both of which are criminal
In addition to the FCA, the FAP (the other “offi- offences under a separate statute; ie, Sections
cial party” in Austria) also has the right to bring 168b and 146 of the Austrian Criminal Code,
actions before the Cartel Court, but it is subject respectively.
to instructions issued by the federal minister of
justice.
4AUSTRIA Law and Practice
Contributed by: Astrid Ablasser-Neuhuber, Florian Neumayr and Gerhard Fussenegger, bpv Huegel
Bid rigging is punishable by up to three years mercial courts. See 5. Private Civil Litigation
in prison, and fraud by up to ten years (and, Involving Alleged Cartels.
notably, pursuant to the Corporate Liability
Act, corporations may also be held liable for 1.4 Definition of “Cartel Conduct”
the criminal offences of their management and The prohibitions against cartel conduct pursuant
employees). Both offences also carry monetary to Section 1 of the Cartel Act are very similar to
fines. In one bid-rigging case, the defendants those of Article 101/1 of the Treaty on the Func-
were subject to prison sentences ranging from tioning of the European Union (TFEU). Since
nine to 11 months, in addition to monetary fines Austria is a member of the European Union,
(see Supreme Court, 26 September 2001, 13 Article 101 of the TFEU and the case law of the
Os 34/01). In another case, one defendant was European courts is directly applicable in Austria.
sentenced to six months in prison (followed by Similarly, Commission enforcement practices
18 months of parole), and the other defendants and policies are generally observed in Austria.
were sentenced to up to 20 months in prison,
although their sentences were suspended and Section 1(1) of the Cartel Act of 2005 prohibits
they were released on three-year probation (see all agreements between undertakings, decisions
Supreme Court, 6 October 2004, 13 Os 135/03 – by associations of undertakings, and concerted
Lower Austrian Window Cartel). In another case, practices that have as their object or effect the
the defence received a five-year prison sentence, prevention, restriction or distortion of competi-
although that case involved other crimes as well tion. Section 1(2) sets out a non-exhaustive list
as serious fraud, including embezzlement (see of prohibited practices, including:
Supreme Court, 28 June 2000, 14 Os 107/99).
• directly or indirectly fixing purchase and sell-
In addition, under the Austrian Federal Procure- ing prices or any other trading conditions;
ment Act, a criminal conviction may also lead to • limiting or controlling production, markets,
exclusion from future public tenders. According technical development or investments;
to Section 68(1) of the Austrian Federal Procure- • sharing markets or sources of supply;
ment Act, the contracting authority may (subject • applying dissimilar conditions to equivalent
to some very limited exemptions) exclude under- transactions with other trading partners,
takings from participation in a procurement pro- thereby placing them at a competitive disad-
cedure if it has knowledge of a conviction for bid vantage; and
rigging or fraud. • making the conclusion of contracts subject
to acceptance by the other contract parties
1.3 Private Challenges of Cartel of supplementary obligations that, by their
Behaviour/Effects nature or according to commercial usage,
Private enforcement motions may be brought have no connection with the subject of such
before the Cartel Court to obtain cease-and- contracts.
desist orders and declaratory judgments, but not
to obtain fines. For actions seeking a declaratory Pursuant to Section 1(4), cartels by recom-
judgment, the applicant must show that it has a mendation, summarising recommendations to
legal interest in such a judgment. observe specific prices, price limits, rules of cal-
culation, trade margins or rebates that restrict,
Private actions seeking money damages need or are intended to restrict, competition may also
to be brought before the ordinary civil or com- qualify as prohibited cartel behaviour.
5Law and Practice AUSTRIA
Contributed by: Astrid Ablasser-Neuhuber, Florian Neumayr and Gerhard Fussenegger, bpv Huegel
Section 2(1) of the Cartel Act 2005 provides for not run while any court proceedings are ongo-
an exemption from the prohibition of cartels if the ing).
conduct contributes to improving the produc-
tion or distribution of goods (or services) while Private claims for damages are time-barred five
allowing consumers a fair share of the resulting years upon the existence of the claim becom-
benefit, or to promoting technical or economic ing known (including the damages incurred,
progress. Such conduct must be indispensable the party causing the damages, and the legal
to the attainment of the beneficial objectives, claim under competition law). Notwithstanding
and cannot eliminate competition in a substan- that, the limitation period runs no longer than
tial part of the relevant products (or services). ten years from when the damage was incurred.
The limitation period is tolled (ie, put on pause)
Section 2(2) of the Cartel Act sets out a de mini- during any proceedings or investigations by the
mis exemption (based on the market shares of Competition Authority, as well as settlement
the involved undertakings not exceeding a cer- negotiations.
tain level) and also carves out from the prohibi-
tion of Section 1 certain limited conduct involv- 1.6 Extent of Jurisdiction
ing the following: Pursuant to Section 24(2) of the Cartel Act of
2005, Austrian competition law applies only to
• books, art prints, sheet music, magazines, conduct that affects the domestic market. How-
newspapers and publishers; ever, domestic effects are determined without
• co-operatives; and regard to whether the conduct occurred in Aus-
• agricultural producers and associations of tria or abroad. For example, the application of
agricultural producers. the Cartel Act does not depend on where an
agreement was entered into, where an abusive
1.5 Limitation Periods practice originated, or whether Austrian under-
The Cartel Court may impose sanctions for vio- takings are involved. The only criterion to estab-
lations of the Cartel Act when the application lish jurisdiction is whether the agreement or
has been filed within five years of the termina- behaviour had an effect on the Austrian market.
tion of the violation. A continuous infringement is
deemed to have ended when the last infringing This effects principle also applies with regard to
action is completed. Different limitation periods the above-mentioned Neighbourhood Supply
apply under criminal law (ie, bid rigging, fraud, Act (Austrian Supreme Court case 16 Ok 3/08
etc). Sägerundholz).
The limitation period is interrupted as of the 1.7 Principles of Comity
date when the FCA notifies its investigation (or The FCA is empowered to execute EU rules and
prosecution) to at least one of the undertakings to collaborate with the European Commission
that participated in the infringement. Each such in its investigations, pursuant to, inter alia, Sec-
interruption restarts the running of the limita- tions 3 and 12 of the Competition Act. The FCA
tion period. Notwithstanding any such interrup- is also integrated into the network of European
tions, however, the limitation period expires no national competition authorities.
later than ten years from the termination of the
infringement (although the limitation period does In particular, the FCA exchanges information
and documents with the Commission and com-
6AUSTRIA Law and Practice
Contributed by: Astrid Ablasser-Neuhuber, Florian Neumayr and Gerhard Fussenegger, bpv Huegel
petition authorities of other EU member states, 2. PROCEDURAL
pursuant to Section 10(1) of the Competition FRAMEWORK FOR CARTEL
Act. However, information obtained therefrom ENFORCEMENT – INITIAL
in connection with a leniency application must
STEPS
not be used for an application for fines – such
an application must be based on information 2.1 Initial Investigatory Steps
obtained from other sources, pursuant to Sec- The FCA typically takes the first steps in opening
tion 11(7) of the Competition Act. The FCA has an investigation. If the FCA believes that compe-
also signed memoranda of understanding with tition law has been infringed, the FCA or the FAP
various national competition authorities, which (or both) may file a motion with the Cartel Court
allow for varying degrees of co-operation in the for the parties to cease and desist their conduct
course of any investigation. or to impose fines. Often, the FCA enters into
settlement talks with the parties prior to bringing
Contacts and co-operation are believed to be an application before the Cartel Court. As part
especially close with the German Federal Cartel of that process, the parties must acknowledge
Office. certain facts about the underlying conduct, as
well as the legal basis for the fine. The Cartel
1.8 COVID-19 Court cannot go beyond the fine applied for by
Austria signed on to the Joint statement by the the official parties.
European Competition Network (ECN) on appli-
cation of competition law during the Corona The Cartel Court is not restricted to the evidence
crisis, by which national competition authorities offered by the parties to the proceeding; rather,
indicated that they would not “actively inter- it may conduct an ex officio investigation. The
vene” in “necessary and temporary” co-oper- proceedings may end with a decision or dis-
ation between companies that is intended to missal (on technical grounds or on substance)
ensure the supply of scarce products. of the government’s motion. The duration of the
proceedings (from the start of the investigation
Austria has not published any additional or sepa- to the Cartel Court’s decision) varies on a case-
rate guidance with respect to its cartel enforce- by-case basis, and depends on the complexity
ment policy during the COVID-19 pandemic. of the particular case at issue.
Nor have the enforcement practices of the FCA
and FAP materially changed during the crisis, The decision of the Cartel Court (unless the
though the latter has indicated a special interest subject of a settlement with the official parties)
in investigating instances of excessive pricing, can be appealed to the Cartel Court of Appeals,
supply restrictions and cartel agreements with which usually takes at least six months to render
respect to health products such as protective a decision.
masks, disinfectants and protective clothing.
The authorities continue to actively pursue car- 2.2 Dawn Raids
tel violations, having conducted numerous dawn Dawn raids are an increasingly common tool
raids and pursued proceedings against violators. employed by the government in the investiga-
tion of cartels in Austria. (Public reports indicate
that the FCA conducted approximately 20 dawn
raids in 2019 alone.) Upon request by the FCA,
the Cartel Court can order an investigation of the
7Law and Practice AUSTRIA
Contributed by: Astrid Ablasser-Neuhuber, Florian Neumayr and Gerhard Fussenegger, bpv Huegel
business premises, pursuant to Section 12 of the 2.3 Restrictions on Dawn Raids
Competition Act. In theory, a party that is subject to a dawn raid
can object to the collection of data or docu-
Generally, outside counsel can represent the ments (or the interviewing of witnesses) on the
company in all aspects of responding to and basis of legal privilege or that the information
dealing with the dawn raid, and can be present sought falls outside the scope of the search war-
on-site during the raid to advise the company. rant authorising the dawn raid. However, no clear
During a dawn raid, the company has the right to legal protections exist in such circumstances as,
ask for its legal advisers to be present, although following amendments to the Cartel Act in 2013,
the FCA is not obliged to wait for their arrival a dawn raid search can only be objected to with
to start its search. Generally, the FCA does not regard to individually specified documents and a
conduct substantive interviews during a dawn categorical sealing of documents is not permit-
raid. When it does, company counsel can usu- ted, and even then, only with respect to a very
ally be present. For senior representatives of the limited set of circumstances that are unrelated
company (who are deemed to speak on behalf to the scope of the search warrant or any legal
of the company), there arguably exists a right to privilege (per Sections 12(5) and (6) of the Com-
counsel being present during such an interview. petition Act).
For other employees, the presence of individual
counsel would only be necessary in extraordinary As a matter of good practice, the FCA has stated
circumstances (for example, involving potential that it will seal narrow categories of documents
criminal liability as a result of suspected fraud). and keep them separate from its general case
file if it is impractical for the party to specify
Many cartel investigations begin with a dawn individual documents during the dawn raid. The
raid, during which the authorities request infor- party will be given time to inspect the documents
mation from the parties, inspect and make copies and identify those it wishes to object to within
of business documents or data that are accessi- a reasonable period of time. Moreover, the FCA
ble from the premises irrespective of their format allows the party to obtain a copy of all files gath-
(including electronic information), and may even ered in the dawn raid that the FCA has made a
question witnesses and representatives of the part of its record file, which the party can review
company (although this is not as common). The and then submit a statement to the FCA lodging
authorities also have the right to seal rooms of its objections.
the premises during dawn raids, pursuant to a
recent amendment to the Competition Act (Sec- Any objections lodged by the party against the
tion 12(4)). FCA’s collection of evidence can only be brought
before the administrative court, which has ren-
Although the authorities can usually only make dered decisions that set out a very narrow and
copies of specific documents or files that are limited ability for the party to object.
located on the premises, in some circumstances
they can also confiscate company records if the Notably, the FCA has taken the position that
success of the inspection cannot be served oth- there is no legal privilege under Austrian law.
erwise (for example, if files are not readable or There is no settled jurisprudence on the exist-
have been deleted, the authorities can seize a ence of a legal privilege in the context of a dawn
laptop to conduct forensic work on it). raid.
8AUSTRIA Law and Practice
Contributed by: Astrid Ablasser-Neuhuber, Florian Neumayr and Gerhard Fussenegger, bpv Huegel
2.4 Spoliation of Information independently as an administrative authority – as
During a dawn raid, the company is usually it would any interview subject to a summons –
informed by the authorities that the destruction and not as part of the enforcement of the search
of data or documents can be an aggravating warrant.
factor during any subsequent fine proceed-
ings. According to a handbook on dawn raids Under current law, the FCA may formally inter-
published by the FCA, full co-operation with view legal representatives of an undertaking.
the authorities’ investigation (in the context of However, the FCA can also interview other
a leniency application or other opportunities for employees during the inspection, although what
obtaining a reduction in fines) entails the com- they say will be taken as witness statements and
pany not allowing evidence to be concealed, not as statements made on behalf of the under-
falsified or destroyed. taking.
Arguably, criminal investigations would also be The FCA creates a copy of all data that is record-
subject to the Austrian Criminal Code, which ed during the dawn raid, and the company can
includes a general prohibition on destroying, make its own copy of the entire collected data at
damaging or suppressing evidence to be used the end of the dawn raid, at its own cost.
in a proceeding.
2.6 Role of Counsel
2.5 Procedure of Dawn Raids See 2.2 Dawn Raids, 2.5 Procedure of Dawn
The FCA can request any information from the Raids and 2.7 Requirement to Obtain Sepa-
company and its personnel that it needs to carry rate Counsel.
out the dawn raid. For example, it may interview
company personnel about the organisational 2.7 Requirement to Obtain Separate
structure of the company and where relevant Counsel
files (physical and electronic) are stored. The Since administrative proceedings against indi-
FCA can also request documents and explana- viduals cannot result in fines, and criminal
tions from company personnel about facts or proceedings are limited to cases involving bid
documents that are related to the subject and rigging or fraud, it is not usually necessary for
purpose of its investigation, such as explana- individuals to have separate counsel from their
tions about the meaning of abbreviations used employers. Counsel would also not be neces-
in email communication or access to sales rep- sary for an employee whose employer submits
resentatives’ laptops. a successful leniency application, as discussed
in 2.17 Leniency, Immunity and/or Amnesty
The FCA can also question company personnel Regime.
about matters that extend beyond explanations
of facts or documents. Prior to such question- However, there may be other potential liability
ing, witnesses are informed of their rights and (labour or civil) that may require separate repre-
obligations; in particular, their right to refuse to sentation, during the proceedings.
give evidence. Representatives of the company,
such as managing directors, are questioned in 2.8 Initial Steps Taken by Defence
their capacities as involved parties; other com- Counsel
pany personnel, such as staff, are questioned as In a dawn raid, apart from the usual steps taken
witnesses. The FCA carries out such interviews in responding to a dawn raid, defence counsel
9Law and Practice AUSTRIA
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will determine whether leniency is available and dawn raid. With regard to information requests
to what extent. If instead the initial steps are in (outside the context of a dawn raid), the FCA can
response to an information request from the ask for all documents or files that are available
authority, defence counsel likewise will need to to the undertaking, regardless of where they are
quickly determine whether unlawful conduct has located or stored. In this regard, the entire group
occurred and whether applying for leniency is a of which the undertaking is a part is seen as a
possibility. single business unit, which means that docu-
ments held abroad by an affiliate would need to
2.9 Enforcement Agency’s Procedure be produced in response to the request.
for Obtaining Evidence/Testimony
In addition to the documents and testimony col- However, if the data or other evidence is locat-
lected during a dawn raid, the FCA may request ed outside Austria, the FCA will likely have to
information from the company during the course engage a competition authority within the juris-
of its investigation. It can issue a summons to diction of the site in order to obtain the request-
interview company personnel, and can also ed information, unless a direct connection to the
request that the company provides additional location exists from the premises where the FCA
documents or data. Such requests for informa- has conducted its dawn raid.
tion can also be sent to other persons or under-
takings that may have helpful information. 2.12 Attorney-Client Privilege
Under Austrian law, legal advice from in-house
In addition, the FCA can request official assis- counsel is not protected by a statutory legal
tance from the general criminal prosecutor’s privilege. In addition, in the view of the Austrian
office or other government institutions in its authorities, Austrian law does not provide for
investigation. the legal privilege of correspondence between
a company and its outside counsel, unless the
2.10 Procedure for Obtaining Other correspondence is in the possession of the law-
Types of Information yer. However, a lawyer cannot be compelled to
See 2.9 Enforcement Agency’s Procedure for testify against the interest of their client unless
Obtaining Evidence/Testimony. they are authorised by the client to do so.
Surveillance powers are granted for violations When European competition law is enforced, the
of criminal offences that, in the context of cartel legal privilege set out in EU law may apply.
conduct, typically involve bid rigging in violation
of Section 168b of the Austrian Criminal Code or 2.13 Other Relevant Privileges
fraud in violation of Section 146 of the Austrian Neither a company nor its representatives can
Criminal Code. be compelled to admit to an infringement, either
in an interview or in response to an information
2.11 Obligation to Produce Documents/ request. However, this privilege is limited, as all
Evidence Located in Other Jurisdictions answers relating to the underlying facts of the
Without an order from the Cartel Court, the FCA infringement must be answered.
can order a company under investigation to pre-
sent any files (including documents and data) In criminal proceedings, there is a complete
that are stored on off-site servers, so long as privilege against self-incrimination, including the
they are normally accessible from the site of the right to refuse to testify.
10AUSTRIA Law and Practice
Contributed by: Astrid Ablasser-Neuhuber, Florian Neumayr and Gerhard Fussenegger, bpv Huegel
2.14 Non-cooperation with oral hearings if doing so is necessary to protect
Enforcement Agencies business secrets.
Failure to respond to a so-called simple informa-
tion request does not lead to any sanctions. A The Cartel Court is obliged to publish final deci-
full information request must be answered cor- sions on the following:
rectly and completely, otherwise the undertaking
can be subject to administrative fines. • the cessation of violations;
• the finding of infringements or rejection of the
2.15 Protection of Confidential/ application;
Proprietary Information • the imposition of fines; and
There is no right to access the record file of the • certain requests in concentration proceed-
FCA or FAP. ings.
The Supreme Court has made it clear that the The operative portions of a final decision must
Cartel Court’s record file is to be given to the be published on the FCA’s website, and the
criminal prosecutor upon request (Supreme name of the immunity recipient must be included
Court, 22 June 2010, 16 Ok 3/10). in leniency cases. In settlement cases, the Cartel
Court’s decision must also include the reason-
Section 39 of the Cartel Act states that non-par- ing for the resolution. The names of the under-
ties may only access the record file of the Cartel takings concerned also have to be published,
Court with the consent of the parties to the pro- as well as the essential content of the decision,
ceedings. However, the ECJ has ruled that this including imposed sanctions. Nevertheless, the
provision is incompatible with EU law, and that a Cartel Court must take into account the legiti-
national court must determine whether to allow mate interests of undertakings in the protection
access to case files by balancing the legitimate of their business secrets, and must provide the
interest of confidentiality and the protection of parties with the opportunity to identify the parts
the leniency programme against the request- of the decision that they wish not to be disclosed
ing individual’s interest in the enforcement of its to the public.
rights (C-536/11 Bundeswettbewerbsbehörde
v Donau Chemie). However, with the entry into The FCA is also empowered to inform the pub-
force of new laws implementing the EU Damag- lic about proceedings that are “of public impor-
es Directive in Austria, it is now unclear whether tance”.
the ECJ ruling would continue to preclude the
application of Section 39 of the Cartel Act, as the Finally, since the implementation of the EU Dam-
new laws providing for private damages claims ages Directive in Austria, specific rules apply in
in Austria grant the right to seek information ordinary courts that govern which documents
from administrative proceedings (the absence from the record file of the administrative pro-
of which was at issue in the ECJ decision). ceeding can be sought by claimants in a civil
court. Pursuant to Section 37k(4) of the Cartel
Generally, proceedings before the Cartel Court Act, leniency statements and settlement sub-
are open to the public. However, upon applica- missions are protected from disclosure, but files
tion by a party to the proceedings, the general in the case record that were obtained indepen-
public can be excluded (partially or fully) from dently of a proceeding are not protected. Other
case records are subject to the balancing of
11Law and Practice AUSTRIA
Contributed by: Astrid Ablasser-Neuhuber, Florian Neumayr and Gerhard Fussenegger, bpv Huegel
interests test, taking into account the effective- the circumstances of the case completely;
ness of public enforcement. and
• it did not coerce other undertakings to partici-
2.16 Procedure for Defence Counsel to pate in the infringement.
Raise Arguments against Enforcement
In principle, defence counsel can raise any legal Leniency applicants must co-operate complete-
or factual arguments at any point in the investi- ly, promptly and truthfully, and must submit all
gation or proceeding. In addition, as a matter of evidence concerning the infringement in their
practice, in most cases a so-called statement of possession or available to them.
objections is issued by the FCA before it brings
the case before the Cartel Court. The undertak- Only the “first in” leniency applicant may obtain
ing can respond to those objections before the full amnesty (ie, full reduction of the fine). Subse-
case is brought to the Cartel Court upon the sub- quent undertakings can qualify for a reduction in
mission of an application by the FCA. Once the their fines. According to the leniency handbook,
case is before the Cartel Court, there are multiple the following reductions will typically be granted
stages and exchanges of briefs (and oral hear- if all the criteria of Section 11(3) of the Competi-
ings) between the FCA and the defendants. tion Act are met and information of significant
additional value is provided to the FCA:
2.17 Leniency, Immunity and/or
Amnesty Regime • for a second undertaking, a reduction of
A leniency programme has been in force in Aus- 30–50%;
tria since 1 January 2006, pursuant to Section • for a third undertaking, a reduction of
11 of the Competition Act (and as set out in a 20–30%; and
handbook published by the FCA on its website). • for all later undertakings, reductions of up to
20%.
The programme is administered exclusively by
the FCA. Under Section 11(3) of the Competition The Leniency Handbook provides for the pos-
Act, the FCA can refrain from applying for a fine sibility to obtain a “marker” upon submitting
against an undertaking (ie, full amnesty) if the certain essential information concerning the
following four conditions are met: infringement, such as the name and address
of the undertaking seeking the marker and the
• the undertaking has ended its involvement in undertaking participating in the conduct, the
an infringement of Section 1 of the Cartel Act type of conduct, the duration of the conduct,
or Article 101(1) of the TFEU; the product and geographic markets affected
• it has informed the FCA of this infringement by the conduct, and plans to apply for leniency
prior to the FCA having knowledge about with other competition authorities. When filing a
it, providing enough information to enable a marker, the FCA recommends using a standard
dawn raid or a direct fine application to the form, and imposes an eight-week deadline for
Cartel Court; completing the application for leniency.
• the undertaking co-operates fully, promptly
and truthfully with the FCA and submits all Individuals can also benefit from reporting cartel
evidence concerning the infringement in its conduct to the authorities. Pursuant to Section
possession or available to it in order to clarify 209b of the Code of Criminal Procedure, the
FCA can inform the criminal prosecutor of an
12AUSTRIA Law and Practice
Contributed by: Astrid Ablasser-Neuhuber, Florian Neumayr and Gerhard Fussenegger, bpv Huegel
individual’s co-operation, and the criminal pros- 3.4 Inter-Agency Co-operation/Co-
ecutor can close its investigation into an indi- ordination
vidual in light of his or her contribution to the See 1.7 Principles of Comity.
FCA’s investigation. However, in that instance,
the immunity of the individual from criminal fines 3.5 Co-operation with Foreign
depends entirely on the success of the leniency Enforcement Agencies
application by his or her employer. Furthermore, See 1.7 Principles of Comity.
pursuant to Section 209a of the Code of Criminal
Procedure, individuals can directly approach the 3.6 Procedure for Issuing Complaints/
criminal prosecutor and provide them with infor- Indictments in Criminal Cases
mation on cartel conduct on their own motion If there is a potential for criminal liability aris-
(although this is not typically done). ing from cartel conduct, the criminal procedures
would follow the general rules governing criminal
proceedings in Austria, and any ongoing admin-
3. PROCEDURAL istrative proceedings would continue before the
FRAMEWORK FOR CARTEL Cartel Court in parallel.
ENFORCEMENT – WHEN
3.7 Procedure for Issuing Complaints/
ENFORCEMENT ACTIVITY
Indictments in Civil Cases
PROCEEDS Administrative proceedings brought by the FCA
3.1 Obtaining Information Directly from can be initiated upon a complaint lodged by an
Employees interested (ie, harmed) market participant. It is
See 2.2 Dawn Raids, 2.3 Restrictions on Dawn also possible for such a party to initiate a pri-
Raids and 2.9 Enforcement Agency’s Proce- vate action before the Cartel Court to seek an
dure for Obtaining Evidence/Testimony. order to cease and desist the cartel conduct (or
a declaratory judgment), although it is not pos-
3.2 Obtaining Documentary Information sible to seek a fine or bring claims for consumer
from Target Company redress. In either case, the proceeding would fol-
See 2.2 Dawn Raids, 2.3 Restrictions on Dawn low the same basic rules and procedures.
Raids and 2.9 Enforcement Agency’s Proce-
dure for Obtaining Evidence/Testimony. With respect to private damages actions, see
5. Private Civil Litigation Involving Alleged
3.3 Obtaining Information from Entities Cartels.
Located Outside this Jurisdiction
The FCA can seek information directly from 3.8 Enforcement against Multiple
companies or individuals located outside Aus- Parties
tria, using the same procedures and relying on The FCA has broad discretion in how to structure
the same laws for information requests made its proceedings. It can include multiple under-
within Austria. Such requests can be directed takings in a single proceeding, or may proceed
at a domestic affiliate of a foreign entity, or they against a single undertaking in other cases.
can be directed at the foreign entity through a
request lodged with the competition authority in 3.9 Burden of Proof
its jurisdiction. In principle, the burden of proof rests with the
FCA. However, the rules that apply to enforce-
13Law and Practice AUSTRIA
Contributed by: Astrid Ablasser-Neuhuber, Florian Neumayr and Gerhard Fussenegger, bpv Huegel
ment before the Cartel Court set forth that the during the proceeding. Expert evidence is there-
court may establish facts on its own motion. It fore accepted, although, in practice, the Cartel
is ultimately the Cartel Court’s decision whether Court often relies on expert witnesses that it has
a violation has occurred. appointed rather than on the opinions of expert
witnesses instructed by one of the parties to the
In proceedings seeking an injunction, a prima proceeding.
facie showing is sufficient. In cases in which
the FCA is not seeking a fine, if an undertaking 3.14 Recognition of Privileges
claims an exemption to the prohibition on cartel See 2.12 Attorney-Client Privilege and 2.13
conduct, the burden of proof lies with the under- Other Relevant Privileges.
taking claiming the exemption.
3.15 Possibility for Multiple
3.10 Finders of Fact Proceedings Involving the Same Facts
The Cartel Court is solely competent to render It is possible for parallel proceedings to be
decisions on the merits in competition cases brought by the FCA (or FAP) and the general
brought by the official parties. It acts as the criminal prosecutor’s office.
finder of fact and makes any legal rulings.
With regard to whether multiple proceedings
3.11 Use of Evidence Obtained from can be brought against different undertakings,
One Proceeding in Other Proceedings please see 3.8 Enforcement against Multiple
Unless the proceedings have been formally Parties.
joined, in principle, evidence cannot be obtained
from a separate proceeding before the Cartel Multiple proceedings against a single undertak-
Court. However, a party may request that the ing based on the same facts can be conducted
Court obtains files from another proceeding in as long as the principle of ne bis in idem is not
order to establish facts. infringed (eg, it is possible to have one proceed-
ing concerning abuse of dominance and another
Evidence submitted by an applicant for leniency concerning a prohibited cartel, but not two coin-
may be used by the FCA in other proceedings ciding proceedings involving the same prohib-
before the Cartel Court. ited cartel).
3.12 Rules of Evidence
Proceedings before the Cartel Court are gov- 4. SANCTIONS
erned by specific procedural rules – including AND REMEDIES IN
those concerning evidence – that generally stem GOVERNMENT CARTEL
from the areas of Austrian law in which the judge
ENFORCEMENT
is not bound by the motions or evidence offered
by the parties (eg, family law). 4.1 Imposition of Sanctions
Only the Cartel Court may render decisions
3.13 Role of Experts on the merits in cartel proceedings, including
The Cartel Court is not restricted to the evi- imposing fines. The Cartel Court is bound by the
dence offered, and there are no restrictions FCA’s application, as it cannot impose higher
under Austrian law about the forms of permissi- fines than those proposed by the FCA, although
ble evidence that the official parties may present it may impose lower fines. Moreover, the FCA
14AUSTRIA Law and Practice
Contributed by: Astrid Ablasser-Neuhuber, Florian Neumayr and Gerhard Fussenegger, bpv Huegel
may choose not to specify the amount of the FCA, the Cartel Court renders a decision on the
recommended fine, leaving the Cartel Court to merits and imposes a fine.
determine it on its own.
There is no fixed timeline for when plea bargain-
If the owners or representatives of a company ing is to occur, or for how long it will take until
give incorrect or misleading information, this resolution. The discussions can be initiated by
constitutes an administrative offence imposed either party, although the FCA is not likely to
by the FCA, which is punishable by a fine of up entertain settlement until it has obtained all the
to EUR25,000, pursuant to Section 11a of the requisite information in its investigation. Settle-
Competition Act. ment is often viewed by the FCA as a mitigating
factor in setting the fine, which can result in a
The FCA may also order the disclosure of infor- reduction of up to 20%.
mation and the submission of documents by
itself and, in the event of default, may order 4.3 Collateral Effects of Establishing
periodic penalty payments pursuant to Sec- Liability/Responsibility
tion 5 (3) of the Administrative Enforcement Act If a final decision by the Cartel Court establishes
(the maximum amount of which for each day an infringement of the competition laws, a civil
of default amounts to 5% of the average daily court is bound by that decision in its own pro-
turnover achieved in the preceding financial ceedings. The resulting effect is that the plaintiff
year, pursuant to Section 11a of the Competi- enjoys a presumption of harm, together with a
tion Act). If incorrect, misleading or incomplete binding finding of an infringement (where the
information is disclosed, this also constitutes an Cartel Court has ruled as such). In that instance,
administrative offence punishable by a fine of up the defendant to the civil case would need to
to EUR75,000, pursuant to Section 11a of the rebut the presumptions.
Competition Act.
A criminal conviction stemming from cartel con-
4.2 Procedure for Plea Bargaining or duct (as discussed above, for fraud or bid rig-
Settlement ging) can lead to exclusion from future public
Neither the Cartel Act nor the Competition Act tenders, pursuant to Section 68(1) of the Aus-
sets out any specific procedures for settlement trian Federal Procurement Act.
or plea bargaining to resolve an investigation.
However, in recent years the FCA has extensive- 4.4 Sanctions and Penalties Available in
ly used negotiated settlements, and continues to Criminal Proceedings
heavily promote them. The Cartel Act of 2005 does not provide for the
imposition of criminal sanctions for breach of
The FCA published a guideline on settlements competition laws. However, Section 168b of
reflecting its practice. In negotiated resolutions, the Criminal Code makes bid rigging a criminal
both sides (which is often the FCA in regular offence, punishable by a prison sentence of up
consultation with the FAP) agree on the facts of to three years. Moreover, certain cartel behav-
the case and the amount of the fine to be paid. iour may also qualify as fraud, which is a criminal
However, this does not cease the proceeding. offence under Section 146 of the Criminal Code
Upon the company’s acknowledgement of its and punishable with imprisonment for up to ten
misconduct and the legal basis for a fine, and years.
also on the basis of the application filed by the
15Law and Practice AUSTRIA
Contributed by: Astrid Ablasser-Neuhuber, Florian Neumayr and Gerhard Fussenegger, bpv Huegel
Under certain conditions, criminal sanctions Mitigating factors can include that the undertak-
could also be imposed on companies for “bid ing’s involvement in the infringement was sub-
rigging” or other criminal infringements by stantially limited, that the undertaking stopped
employees pursuant to the Act on Responsibil- the infringement on its own accord, or that the
ity of Legal Entities for Criminal Acts, although undertaking has significantly contributed to the
that has rarely been applied to date. FCA’s understanding of the infringement during
the course of the investigation. In particular, the
There are no specific procedures for imposing co-operation of the undertaking in relation to the
criminal sanctions in the cartel context, as the FCA’s investigation of the infringement acts as a
general criminal procedure is followed. mitigating factor.
See also 1.2 Public Enforcement Agencies and Both the FCA and the Cartel Court have taken
Scope of Liabilities, Penalties and Awards. the fining guidelines of the European Commis-
sion into consideration in past cases, although
4.5 Sanctions and Penalties Available in they have not applied them verbatim.
Civil Proceedings
Under Section 1 of the Cartel Act of 2005, agree- See also 5. Private Civil Litigation Involving
ments and decisions that infringe the prohibition Alleged Cartels.
on cartel conduct are deemed null and void. In
addition, the Cartel Court can impose fines of 4.6 Relevance of “Effective Compliance
up to a maximum of 10% of the turnover of the Programmes”
undertaking during the last business year. In general, a compliance programme does not,
in and of itself, ensure a reduction in sanctions
According to Section 30 of the Cartel Act, the for participating in cartel conduct (Supreme
criteria taken into account when determining the Court, 27 June 2013, 16 Ok 2/13). However,
amount of a fine are as follows: more recently, the FCA has begun to draw up
internal guidelines, according to which, having in
• the gravity and duration of the infringement place an effective compliance programme would
(including geographic scope and market be recognised as a mitigating factor for lower-
shares of the cartelists); ing a fine (understood to be by no more than a
• the gains (if any); single-digit percentage).
• the level of fault involved; and
• the economic strength of the infringing under- Factors that are expected to be considered in
taking. determining whether an effective compliance
regime is in place include:
The provision also contains aggravating and mit-
igating factors. Notably, one aggravating factor • a top-down approach;
that increases the fine is being a repeat offend- • broad distribution within the organisation;
er of the cartel laws. A prior offence is one for • solutions tailored to the organisation;
which a fine was imposed, or where the under- • training and education;
taking was previously found guilty of committing • efficiency (including the ability to withstand
a violation of the cartel laws. Similarly, where an stress tests such as mock dawn raids);
undertaking was the “ringleader” or instigator of • quality of measures taken;
the infringement, a higher fine can be imposed. • documentation of measures taken; and
16AUSTRIA Law and Practice
Contributed by: Astrid Ablasser-Neuhuber, Florian Neumayr and Gerhard Fussenegger, bpv Huegel
• regular review and updates. harm inflicted as a result of the conduct. Inter-
est is generally payable from the time when the
4.7 Mandatory Consumer Redress harm was incurred, but punitive damages are
Sanctions in administrative proceedings for vio- not available. Damages are typically calculated
lation of competition laws, or in a criminal pro- by making a comparison between the plaintiff’s
ceeding for fraud or bid-rigging violations, do not position following the conduct and its position
generally include consumer redress. However, in a hypothetical scenario in which the conduct
in criminal proceedings, consumers may seek does not occur; for example, in the price paid.
compensation for damages, although, in prac-
tice, it is rarely awarded. Therefore, consumers Since it was amended in 2017, the Cartel Act
typically seek such redress by filing a private now contains specific provisions on the bring-
damages claim in a civil court. ing of private damages claims, according to
which, aggrieved competitors as well as harmed
4.8 Available Forms of Judicial Review customers may bring damages claims against
or Appeal undertakings that have violated the competition
Decisions of the Cartel Court can be appealed to laws against cartel conduct. This is in addition
the Supreme Court sitting as the Cartel Court of to any ordinary contractual claims or claims
Appeals, the decision of which is final. Normally, for illicit gains that a consumer may pursue in
the Supreme Court will only consider questions civil court. The new rules in the Cartel Act now
of law, although amendments in 2017 to the expressly refer to Section 273 of the Code of
competition laws include a basis for a limited Civil Procedure, which, under certain circum-
review of important questions of fact (although stances, allows the civil courts to estimate (rath-
it is not clear yet whether, and to what extent, er than strictly ascertain) the compensation to be
the Court will do so). awarded to plaintiffs. The amendment also made
it clear that the civil courts can take into account
any gains from the cartel conduct.
5 . P R I V AT E C I V I L
L I T I G AT I O N I N V O LV I N G Under established case law, the party claiming a
ALLEGED CARTELS breach of competition law must state all relevant
facts that form the basis of the infringement (see
5.1 Private Right of Action Supreme Court, 8 October 2008, 16 Ok 8/08
Private damages claims can be brought under Immofinanz). For claims under the Unfair Com-
general Austrian civil law before the ordinary civil petition Act, the Supreme Court has lowered the
or commercial courts. Most commentators and standard of proof by holding that the plaintiff only
the Supreme Court agree that the prohibitions has to establish with a high probability that some
against cartels fall within the protections guaran- harm has occurred (see Supreme Court, 15 Sep-
teed to customers by Section 1311 of the Aus- tember 2005, 4 Ob 74/05v). Critically, pursuant
trian General Civil Code. The commercial courts to the 2017 amendments to the Cartel Act, under
may issue cease-and-desist orders and award Section 37c(2) there is now a statutory presump-
damages under Section 1 of the Unfair Competi- tion of harm caused by cartels between com-
tion Act (see Supreme Court, 14 July 2009, 4 Ob petitors that shifts the burden of proof towards
60/09s Anwaltssoftware). There is no maximum the defendant in civil follow-on cases.
to the damages that can be sought in a private
action, other than that they must reflect the
17Law and Practice AUSTRIA
Contributed by: Astrid Ablasser-Neuhuber, Florian Neumayr and Gerhard Fussenegger, bpv Huegel
5.2 Collective Action In turn, the defendant can argue such pass-on
A draft amendment to the Code of Civil Pro- in its defence against a direct purchaser that is
cedure that would have introduced group pro- seeking monetary damages (although, pursuant
ceedings and what are referred to as “specimen to the private enforcement provisions in the Car-
proceedings” was heavily criticised and did tel Act of 2005, a private damages claim by the
not become law, so there is limited availability direct purchaser is not precluded by the mere
to bring collective claims in Austria. Individual fact that the goods or services have been sold
proceedings can be brought together, typically on to another buyer). The defendant bears the
by way of assignment of individual claims to a full burden of proof in arguing a pass-on defence.
collective plaintiff or subsequent joinder of indi- By contrast, the indirect purchaser benefits from
vidual claims into a single proceeding, although a presumption that the overcharge was passed
it must be shown in such cases that the claims on to them if it proves the following:
result from the same set of facts or are based on
the same legal title. • that the defendant committed the infringe-
ment;
5.3 Indirect Purchasers and “Passing- • that the infringement resulted in an over-
on” Defences charge; and
Those indirectly harmed (eg, the customer of • that it purchased goods or services that were
someone who purchased from a cartelist) can affected by the infringement.
establish standing to seek monetary damages if
they can show that the overcharge resulting from 5.4 Admissibility of Evidence Obtained
the cartel conduct was passed on to them. In from Governmental Investigations/
a lawsuit against elevator manufacturers stem- Proceedings
ming from a European Commission decision In Austria, there are no rules that would pre-
and fine, the ECJ in 2019, in a preliminary rul- vent any evidence from being admissible in a
ing, clarified that, under the EU cartel prohibition civil action. To the extent information from an
of Article 101(1) of the TFEU, compensation for administrative proceeding becomes available to
infringements is not limited to customers and a civil plaintiff, such evidence can be introduced
suppliers in the market affected by the cartel in the civil case.
since this would not be compliant with the prin-
ciple of effectiveness. Therefore, persons may 5.5 Frequency of Completion of
seek compensation for the losses they suffered Litigation
in their capacity as a public body granting sub- In Austria, there has been only one instance
sidies. of a successful follow-on civil damages claim
for cartel conduct that resulted in a damage
However, such loss must have a causal con- award. Currently, several large damages cases
nection with the infringement of the EU cartel are ongoing, including ones following Cartel
prohibition. The national court must determine Court decisions in the payment card and eleva-
whether the claimant actually had the possibil- tors cases.
ity to make more profitable investments and
whether they have sufficiently established the Proceedings in Austria typically last a year in
existence of a causal connection between the each instance. However, trials may last signifi-
indirect losses and the cartel. cantly longer in cases that make “new law”, such
18AUSTRIA Law and Practice
Contributed by: Astrid Ablasser-Neuhuber, Florian Neumayr and Gerhard Fussenegger, bpv Huegel
as the still relatively new field of private enforce- 6 . S U P P L E M E N TA R Y
ment. I N F O R M AT I O N
5.6 Compensation of Legal 6.1 Other Pertinent Information
Representatives There is no other pertinent information in this
Austria follows the “lose or pay” principle, which jurisdiction.
means that the winning party is entitled to the
reimbursement of legal fees at statutory levels, 6.2 Guides Published by Governmental
which are based on the amount in dispute. When Authorities
the amount in dispute is high, the legal fees The following written guides relate to cartel con-
awarded can be significantly higher than cus- duct and enforcement:
tomary fee arrangements based on hourly rates.
• Handbook on Leniency Programme;
5.7 Obligation of Unsuccessful • Standpoint on Resale Price Maintenance;
Claimants to Pay Costs/Fees • Guidance on Dawn Raids;
Civil follow-on private damages claims in cartel • General information about cartels;
cases apply the general attorney costs and fees • Whistle-blowing system and explanation.
rules of the Code of Civil Procedure. The losing
party of the civil proceeding must pay its own
costs and the costs of the winning party. If one
party is only partially successful, such party’s
legal costs will only be reimbursed by the other
party in proportion to its success. The amount
of the costs is based on statutory lawyers’ rates.
5.8 Available Forms of Judicial Review
of Appeal of Decisions Involving Private
Civil Litigation
In civil proceedings, there is always the possi-
bility to appeal. Under certain circumstances,
the case may also be appealed all the way to
the Austrian Supreme Court (the highest level
of appeal).
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